UN Working Group BHR: Call for input due 18 November ( upcoming information note on the links among corporate political engagement, responsible business practices, and human rights)

 

The UN Working Group for Business and Human Rights has circulated a call for inputs that might provide the WG something if use as it seeks to finish its upcoming information note on the links among corporate political engagement, responsible business practices, and human rights. Here is the substance of the Press Release:

Call for inputs to information note — UN Working Group on Business and
Human Rights

Ensuring business respect for human rights in the political and regulatory
sphere and preventing “corporate capture”

Background

The UN Working Group on Business and Human Rights (“the Working Group”) is developing an information note to examine links between corporate political engagement practices and responsible business conduct. Specifically, the information note will explore how to encourage responsible political engagement, how to prevent what constitutes undue political influence by businesses—sometimes termed “corporate capture”—and how such activities may undermine and be inconsistent with the corporate responsibility to respect
human rights set out by the UN Guiding Principles on Business and Human Rights (“the Guiding Principles”).

The note will address how businesses should account for this responsibility and exercise human rights due diligence (HRDD) when engaging in a variety of activities in the political sphere – from lobbying to political donations to decisions about whether to speak publicly about policy debates that may impact their employees and other members of their community. The note will focus on how HRDD can identify negative impacts for people and planet resulting from corporate political engagement activities and good practices in terms of how to prevent and mitigate such impacts. The note will aim to create greater coherence between businesses’ commitments to respect human rights and their political and lobbying activities, which are not always in alignment.

To help inform its analysis, the Working Group invites all interested parties to submit written inputs. The below questions provide a guide for structuring inputs, but the Workng Group also welcomes inputs on other relevant aspects, as well as submissions of pre-existing written output from individuals and organizations (civil society reports, academic journal
articles, etc.).

Inputs should be sent to wg-business@ohchr.org with subject line “Survey inputs: corporate political engagement.” Please make submissions no later than November 18, 2021.

Far more interesting are the questions around which this highly curated input will be woven into a fabric the design of which has already been cartooned.  As usual with these instruments, the conversation about fundamental approaches and the normative baselines against which action will be taken have already been had and decisions taken.  Engagement, then, is meant to be administrative--the way that clever people with a talent for the elaboration of administrative-bureaucratic systems might devote those talent s to sketching out  useful operational approaches. That is, indeed, a very useful curation of both engagement and talent, one that leaves the hard initial political work of making choices about the basic line to be privileged to the Working Group or elsewhere.

 

If the questions provide the cartoon for the weave that is to be the administrative-bureaucratic suggestions that will make up the Report (after the usual several pages that flesh out the problem and describe the political choices made to provide the normative structures within which solutions may be crafted), then they might also serve as a basis for reverse engineering to extract the underlying normative choices made that produced this crop of questions as the sheep dogs herding global talent towards appropriate  choices of operational models.  Clues, of course, are embedded in the cal for inputs itself--engagement with the quite fashionable approaches to knowledge of corporate capture, and the ways in which business can be made be behave appropriately in the political sphere (individuals, however powerful), and states, of course, operate under different rules  whatever the political model of the state in which such political interventions are effectuated). Effectively, then, the inputs start from the presumption that business engagement in politics is of a different and negative character from that of others, and that this must be managed if it remains impossible to curtail (for example in states following a civil and political rights model like that of the United States). It will also, and necessarily, provide an administrative-bureaucratic platform for criticizing states whose political ideologies do not conform to the model against which the approaches suggested by the inputs will be elaborated.  Bravo!

The questions that are the central element of the call for inputs follow, along with brief efforts to extract each of their contributions to the construction of normative meaning that enhances the ideological foundations and presumptions already built into the soon to be finalized report.  My main take-away: the fundamental weakness of the construction of this input is its focus on the enterprise as a unique actor in politics, and with the structures of management and curtailment of political rights as the singular or principal cure for the ills that the Report presumes.  A better approach, and a toad not taken, would have been to focus from the start on the issue of the corruption of the political process of states, and then to develop measures, generally applicable, to all collectives that seek to exercise political and civil rights.

Questions

§ How should “corporate capture” and its connection with human rights be
defined? What distinguishes legitimate corporate political engagement from
undue political influence by businesses which carries human rights risks?

The question is far more interesting for its presumptions than for its invitation to provide answers which are already implied by the form the question takes.  The objective of the questions to find ways--at least formally consist with the constitutional traditions of liberal democratic states, and the protection of internationally recognized civil and political rights (including associations rights)--to limit the political and civil rights of aggregations of human individuals when that aggregation takes certain forms. "Capture" by religious collectives (organized Churches or other associations grouped by fidelity to religious principles or messages) is undisturbed.  So is "capture" by other aggregations. The premise that aggregations of individuals grounded in economic terms is somehow both distinct from other aggregations, and their ability to engage far more pernicious than those of other powerful non-state collectives, is an old tale with deep roots in Marxist theory and in the corporate jurisprudence of the United States.  But it has also been quite controversial and there is no consensus about either its character of the uniqueness of its effect.  

What is clear is that people with an equally powerful access to the mechanics of public power have determined that insertions of corporations into politics is of a kind that ought to be managed differently from that of others and suppressed in some instances. Part of that flows from an effort to produce a qualitative logical association between economic power, the potential for interference afforded by globalization, and the relative inability of less developed states to resist engagement with such actors with respect to matters of interest to them.  On the other hand, the governmentalization of the enterprise through a generations long process of investing them with regulatory power through  the application of soft law frameworks, like UNGP and now mandatory human rights due diligence and disclose rules, has transformed these enterprises into more and more powerful political actors. It might then have been better to have reframed the question from one about capture to one about the placement of corporations within rather than apart from the administrative and political apparatus of states. That, in turn, might produce responses better sited to the realities of the relationship between enterprises as economic and political actors, and states, which now increasingly operate in the same spaces. Ultimately the question suggests a more basic question--to what extent and how might it be necessary to control the political authority of economic actors and why should they be treated differently from other great non-state collectives with disproportionate power over (especially smaller and less developed) states. Otherwise the question might be better stated as one seeking a rationale for privileging some forms of collective interventions over others and their basis (money, conformity to ideological orthodoxy and the like).  Those questions and that discussion, of course, are now out of bounds.

§ Are there specific examples of undue corporate influence that has led to
government decision-making that negatively impacts human rights? Are there
specific sectors where this has taken place either in the global or
domestic context? What solutions or measures have been taken to encourage
responsible and transparent corporate engagement in global and national
policy-making?

 This second question flows nicely from the first.  If, indeed, corporate interference is itself to be transformed into a political "negative" or "bad" because it is of a character or quality different from that of other political actors organized in collective form (NGOs, Churches, Labor unions, or groups organized to protect the interests based on gender, race, ethnicity, and the like) then it is necessary to develop its narrative. The narrative is quite specific--and ultimately should trouble: how does one develop the stories necessary to support a transformation of societal approaches to politics in liberal democratic orders, one in which politics, like virtually all other aspects of societal life, are well managed and in which accountability becomes a systemic constraint on the exercise of autonomous or collective action within a liberal sovereign order.  One starts with the economic enterprise of course because it is from the perspective of that impulse "low hanging fruit." But in this case the management of the enterprise in politics is merely a dress rehearsal for a more comprehensive approach.  The irony, of course, is that in many ways this parallels the trajectories of development of a now re-invigorated Marxist-Leninist approach to the management of politics among the masses and mass organizations.

§ What measures can States take to prevent and address corporate political
activities that may undermine the State’s ability to protect human rights
and businesses’ responsibility to respect human rights, including
situations arising from trade and investment frameworks? For example, what
types of lobbying/conflict of interest transparency and disclosure
mechanisms are useful tools to provide greater transparency into corporate
political activities?

Pix credit HERE

At last with question three one gets to the well curated heart of the curation that is shaped here in the form of interlinked questions that serve as a path toward a very specific set of answers.  Here one comes to the way that economic enterprises ought to be constrained in their access to and participation in a politics that in virtually all respects affects its collective character as well as its interests and position in society. The question really is meant to nudge toward the helpful example provided.  What the WG is looking for is justification and a granular set of proposals for the building of a wall between economic organization and engagement with political actors and the political process. Engagement is focus on access and lobby--the projection of a corporate voice within the apparatus of state.  And the implication is a willingness to use a clumsy and heavy hand grounded in exclusion. A better and  more useful approach might have been to focus on the issue of corruption rather than on "capture" and to focus on the application of transparency and anti-corruption measures generally to all collectives rather than to target enterprises.  But that would have been inconsistent with the undying ideology that propels these questions and that report.

§ What are good practices that businesses can implement to avoid undue
political influence or engaging in political activities that negatively
impact human rights?

The better answer would have been to develop an international set of standards and expectations about the integrity of the political process and of the nature and evidence of political corruption.  There are already a number of national and international instruments that have begun that process.  It is the protection of the integrity of the political sphere (a positive approach) rather than the curation or suppression of the political activities of a single class of actors (economic enterprises) that really form the heart of the issue which ought to be at the center of the WG's agenda on this issue. 

§ What are key practical considerations for businesses when creating human
rights due diligence processes that will take into account the impacts of
their political activities? What does/might this look like in practice,
including for global political engagement (e.g., corporate engagement with
multilateral institutions or international treaty processes)? Do good
practice examples exist (not necessarily framed in human rights “language”)?

The answer to this question is equally applicable to every collective that seeks to exercise political and civil rights.  First is to ensure that collective politics are accountable as a function of the interests of the collective and its members.  The collective as a paramount interest in its own objectives.  Second, that those objectives are consistent with the political principles, expectations, and rules of the political space in which they operate.  Within that space they ought to be free to press their views and their interests in full fidelity to the boundaries of political actions given the nature and operation of systems.  Thus political action in Marxist Leninist space will be different than in liberal democratic spaces, and the specific nature of those spaces will vary from state to state.  Transparent measures ought to be developed, and accountability measures implicated  with respect to those to enforce that corporate action aligns with core internal and national principles (each broadly understood). To those ends shareholder and to some extent stakeholder democracy principles ought to be cultivated.  The real question then is the extent to which enterprises, and other collectives, are obliged also to conform their objectives to international principles and norms and law. The answer is yes, but to the same extent as states in the international sphere--with a healthy margin of appreciation within the great interpretive spaces deliberately built into the structures of international law and norms.  The rest--to the chagrin of the WG perhaps, is politics.  

§ What are specific challenges rightsholders face in seeking remedy when
harmed by policymaking resulting from corporate political engagement that
is not rights-respecting?

The answer depends on whether economic enterprises are characterized as public or private bodies.  If they are conceived as the administrative-bureaucratic arm (privatized) of state or international organizations then as state actors rights holders ought to expect nothing more or less than what they ought to expect from the state.  The WG wants more, of course.  That is implied in the question--and that more is what is being nudged by its crafting and placement here in the list of questions.  The question again implies corruption but mis-focuses on its source.  The issue is less the role of the corporation than the corruption of the administrative agency or the corruption of public authority when exe4rcised by a private actor (whether a private enterprise or an SOE). What rights holders must seek, then, is a more vigorous apparatus of anti-corruption and accountability from their administrative and regulatory agencies rather than to veil that decay in governance by focuses on enterprises and their role in politics.

§ What less overt or lesser-known forms of undue influence or “corporate
capture” should the Working Group consider when assessing this topic and
making reformations? (e.g., corporate sponsorship of science and academic
research, etc.).

The objection here, of course, is to the rich semiotics and judgment built into the word "undue". That forms the essential objection here.  What may be undue in a Marxist Leninist political space may well be necessary in a liberal democratic space.  Moreover, the word masks an ideological preference.  Should enterprises use their corrupting and coercive engagement to further the work of the UNGP or the agendas of the WG it would be very much doubted that there would be an objection--precisely because ideologically that misuse does not produce "undue influence".  The magic of lagalisms at work here that mask inconsistency--one that ought to be quite concerning. 

§ What are specific human rights risks posed by corporate capture to
groups such as women and girls, indigenous communities and human rights
defenders?

This is a critically important question the power of which is dissipated and again mis focused because of the obsession with the separation and assumption of a sui generis character to economic enterprises in the project of human rights and sustainability.  Enterprise exceptionalism causes more problems than it solves.  In this case the answer ought to be framed in terms of societal risk, and of the risks posed by public institutional failures of will or capacity.  The answer ought to be to ensure economic enterprises work with states to build public capacity, and to focus on the First Pillar failures of states . Enterprises might develop their own private law systems for undertaking the advancement of international norms--but where they work in a legal environment marked by corruption or by the failures of the political apparatus to conform their law, practices or expectations along lines developed under international law, norms, etc., then corporate efforts are hobbled.  They will be hobbled even more by the success of the project implicated by this call for inputs at least in this respect.